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Over the years, I have heard various colleagues say they thought empirical legal research (ELR) has been on the rise. Some see this as a positive development, making law and legal research more evidence-based and diverse. Others are critical, for example because ELR projects are more successful when it comes to obtaining grants than doctrinally-oriented projects.

For sure, I have seen many ELR workshops, conferences, symposiums and other events been organized over the years. Nevertheless, I have wondered why there would be an increase of ELR. I have not seen more colleagues who have been enthusiastic about ELR actually start doing more ELR. This year, together with two co-authors, I took the time to go analyze the proportion of empirical articles in the 2008 – 2017 period for a large number of European-based legal journals.

The result? The evidence for an increase is weak at best. The results do not provide convincing evidence (if any) for an increase of the proportion of empirical articles. We did find some other interesting effects, such as more prestigious journals being more likely to publish empirical articles than less-prestigious journals, and older journals being more likely to publish empirical work than younger journals, but not at an increasing rate.

The study obviously comes with some limitations, since the time period that was examined is limited, because an analysis of the submitted articles may paint a different picture, or because ELR scholars may tend to publish in US-based journals rather than European-based journals. Nonetheless, the findings do raise the question why ELR has not become more popular.

Various reasons can be identified that form obstacles for ELR to grow. The availability of data that can be analyzed is undeniably important. But perhaps more important is training. To my knowledge, legal academia has not been considerably changed in that it implemented a more empirical focus in the programs offered to law students. As a result, academic staff is not incentivized to obtain empirical skills, and because graduates are not trained empirically, they are unlikely to see the importance nor will they see the necessity to recruit empirically trained law school graduates. It therefore seems that if we want to increase the use of empirical legal research, it starts in legal education. And by simply start doing it.

Stichting ConsumentenClaim has announced to start legal proceedings against Dutch Railways on behalf of a passenger. The question that the court will essentially need to answer is whether overcrowdedness in trains resulting in passengers frequently not having seating constitutes a breach of contract.

To determine whether such a claim will be successful, several legal questions need to be answered: does Dutch Railways have an obligation to perform?, does it merely have a best efforts obligation, and if so, what should be understood under ‘best efforts’?, when can a passenger reasonably expect a place to sit on the train?, how do passengers prove they have suffered a loss?, and what losses does a passenger exactly suffer? Some argue that passengers’ claims do not stand a chance. Others see such claims as society becoming more litigious and may condemn passengers of overcrowded trains who file a claim. One may even see them as despicable money-grabbing plaintiffs.

Qualifications like these are likely unjustified. Empirical research has demonstrated what victims need in case they suffered a harm or loss. They do not primarily or not only seek monetary compensation, but (also) tend to seek recognition, an apology, disclosure (what happened, and why), closure, and prevention. A train passenger is not likely to seek money, but a place to sit.

It is also known that once frustration builds, there will be individuals who seek legal enforcement to have their needs met. This could explain why train passengers are now willing to join StichtingConsumentenclaim in a battle against Dutch Railways. They may hope or expect that a claim will provide incentives to Dutch Railways to solve the issue of overcrowded trains, or at least reduce the issue.

The problem, however, is that the solution that contract law and tort law provide, the law of damages in particular, is rather one-dimensional. Even though most jurisdictions allow for different types of relief, monetary compensation is by far the most popular tool in the legal toolbox. This explains why train passengers resort to monetary compensation: the legal system forces them to. The emphasis (or: fixation) on monetary compensation is so strong that it becomes difficult to consider alternatives. This not only, partly or predominantly, explains why train passengers file claims against Dutch Railways, but also why they claim against physicians who have erred or against Malaysian Airlines after the downing of the MH17 plane.

As a result, claims such as the one against Dutch Railways expose the inability of contract law and tort law, the law of damages in particular, to properly address victims’ needs. They reveal the limitations of the monetary perspective that dominates the law. The real challenge for the legal community is therefore not to formulate an answer to questions such as ‘Did the train passenger suffer a loss?’, but to find an alternative to the dominant monetary perspective.

What particularly seems to be becoming more popular, is to talk about ELS – there is no evidence for an increase of the number of empirical legal studies that are conducted in the Netherlands. Some evidence by one of the presenters at Tuesday’s conference even suggested that the number of journal articles that present original empirical research (i.e. through data collection by the researcher / author himself or herself) has remained constant over the years. This observation is surprising, as multidisciplinary research may attract more funding, Ministries are calling for more empirical research, scholars seems to welcome more empirical legal research, and all of the Judiciary Council’s research is empirical. Moreover, empirical legal research that is conducted in the Netherlands is primarily done by researchers who have a social scientific background, with or without a law degree (Elbers 2016; for English summary click here).

Why is ELS seemingly on the rise but not resulting in more empirical research? One explanation is that there are other forces in play. While ELS is becoming more popular, the Dutch bar association has imposed stricter requirements as to the courses and topics Dutch law schools should teach. As a result, the vast majority of the course credits are and should be assigned to courses in private law, criminal law, and administrative and constitutional law.

It is a widespread belief that the bar requires Dutch law schools to only teach doctrinal scholarship to students. I doubt whether this belief is correct. Teachers may have more flexibility than they think regarding exposing students to different perspectives and approaches than merely a doctrinal approach, as long as they focus on the topics the bar wants them to focus on (e.g. tort law, criminal law). The issue, therefore, may not be so much the bar and its requirements, but the perception of legal academia of what the bar requires law schools to do.

Consequently, there are two conditions for empirical legal scholarship to flourish in the Netherlands. First, it will only evolve if teachers no longer believe that courses have to be taught doctrinally. Second, law schools need to stop believing that they need to hire doctrinally oriented teachers (at every level, from lecturer to professor) to teach their courses. This means that the success formula for empirical legal research in the Netherlands may ultimately be rather simple: just do it.

Computer courts are not science fiction. Intuitively, an important limitation of computer adjudicators is that the procedure becomes impersonal. Consequently, users may prefer human adjudicators over software adjudication. The research of Ayelet Sela suggests otherwise. She tested whether litigants preferred a human mediator over a software mediator. Using an electronic environment that was developed to analyze online dispute resolution, she found that the software mediator was preferred to the human mediator, and not the other way around. Individuals even felt they could express their views better when using an interface. The paper was presented at the Conference of Empirical Legal Studies, which was held on 18/19 November 2016 at Duke University. Click here for the paper.

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